Terms and Conditions

  1. THE AGREEMENT
    These Terms and Conditions constitute the agreement (the "Agreement") between Lingo, Inc. ("Lingo," “us”, or “we”) and the user ("you," “your,” "user," or "Customer") of the Lingo residential and small business Voice over Internet Protocol (“VoIP”) communications services and any related products or services ("Service"). For purposes of this Agreement, "you" means the Customer, defined as either (i) the person identified in Lingo’s account records as responsible for payment of all charges; or (ii) any other person with actual or apparent authority to represent that person or to use the Service.
    BY ENROLLING IN, USING, OR PAYING FOR THE SERVICE, YOU AGREE TO THE PRICES, CHARGES, TERMS AND CONDITIONS IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE PRICES, CHARGES, TERMS AND CONDITIONS, DO NOT USE THE SERVICE, AND CANCEL THE SERVICE IMMEDIATELY BY CALLING LINGO’S ACCOUNT MANAGEMENT DEPARTMENT AT THE TOLL FREE NUMBER ON THE FIRST PAGE OF YOUR INVOICE FOR FURTHER DIRECTIONS.

    This Agreement governs the Service and any devices, such as the Analog Telephone Adapter or any other IP connection device ("Device" or "Equipment") used in conjunction with the Service. By activating the Service, you acknowledge that you have read and understand, and you agree to, the terms and conditions of this Agreement, and you represent that you are of legal age to enter this Agreement and become bound by its terms.
    Lingo may from time to time change the Terms and Conditions of this Agreement, and the rates and charges for the Service, by giving notice of the change. Notices will be considered given, and will become effective prospectively, three (3) days after the date that the change is posted on www.Lingo.com or three (3) days after such change is communicated to you by e-mail. Customers are advised to check www.Lingo.com on a regular basis for changes and to review their monthly invoices for notice of changes. In particular, there may be frequent changes in the rates to destinations not included within the unlimited calling plan. The Agreement posted on www.Lingo.com supersedes all previously agreed to electronic and written Terms and Conditions. By continuing to use the Service after a change has been made to this Agreement or the rates and charges, you accept and agree to all changes. IF YOU DO NOT ACCEPT OR AGREE TO ANY OF THE CHANGES, YOU MUST TERMINATE YOUR SERVICE IMMEDIATELY.
    In the event that material changes are made in certain rates or charges, Lingo will waive Disconnect and Rebate Recovery Fees that may otherwise apply to your account. See Section III (C) below for a description of the circumstances in which such Fees do not apply or will be waived.

    For your most current rates and charges, the most current version of the Agreement, or if you have questions about your Service, please visit our website at www.Lingo.com (see Rates and Terms & Conditions links) or call Lingo’s CUSTOMER CARE DEPARTMENT at the toll-free number listed on the first page of your invoice.

    IN ORDER TO USE THE SERVICE, THE CUSTOMER MUST HAVE A HIGH-SPEED INTERNET SERVICE, BROADBAND OR DSL, WHICH IS NOT A PART OF THE SERVICE. You are responsible for subscribing and paying for your high-speed Internet access, broadband or DSL in order to use your Service. The quality of your Service is highly dependent on the data speed, quality and reliability of your high-speed Internet, broadband or DSL connection. It is your responsibility to report and resolve any quality and connectivity issues related to your high-speed Internet, broadband or DSL connection with your provider.

  2. LINGO EMERGENCY CALLING SERVICE & E911 SERVICE
    Pursuant to rulings by the Federal Communications Commission (“FCC”), Lingo has arranged for E911 dialing services for all of its Lingo customers in areas in which the Public Safety Answering Point (“PSAP”) is equipped to handle E911 calls. Lingo has undertaken this ongoing, nationwide effort through its third-party E911 provider. As the roll out of the E911 initiative progresses, increasing numbers of Lingo customers will have E911 service, where available. We encourage all customers to check their “My Account” section at www.Lingo.com to find out the progress of E911 capability for their registered location.

    As set forth in Section III(V)(c) below, Lingo charges a monthly fee of $1.99 per account for E911 or Emergency Calling Service (ECS).
    For those customers that signed up for the Service prior to November 28, 2005, Lingo will continue providing the Emergency Calling Service described below unless or until the E911 services are activated. For those customers that sign up for the Service after November 28, 2005, Lingo will confirm E911 capability prior to sign up. Regardless of when a Customer signs up for the Service, if the Service is used in a physical location different than the current location registered with Lingo (the “911 Service Address”), E911 service may or may not be available, and the 911 call will be routed to the wrong location. It is important that such Customers promptly update their location with Lingo in accordance with the instructions in Section II(D) below.

    1. Non-Availability of Traditional 911 or E911 Dialing Service:
      You acknowledge and understand that unless you have been specifically informed by Lingo that E911 service is available at your 911 Service Address (which can be confirmed in your “My Account” section at www.Lingo.com or by calling Lingo’s Customer Care Department), the Service will NOT support traditional 911 or E911 access to emergency services. In such cases, Lingo offers a limited Emergency Calling Service available only on Lingo Devices as described herein, but you acknowledge and understand that such Emergency Calling Service dialing is different in a number of important ways from traditional 911 services, as described below. Lingo Emergency Calling Service dialing is available only on Lingo-certified Devices or Equipment. You agree to inform any household residents, guests and other third persons who may be present at the physical location where you use the Service (i.e., your 911 Service Address) as to the non-availability of traditional 911 or E911 dialing from your Service and Device(s). If you activate Lingo Emergency Calling Service dialing, you agree to inform any household residents, guests and other third persons who may be present at the physical location where you use the Service as to the important differences and limitations of Lingo Emergency Calling Service dialing as compared with traditional 911 or E911 dialing, as set forth in this Agreement.

    2. Description of Emergency Calling Service-Type Dialing Capabilities - Activation Required
      Lingo does offer an Emergency Calling Service that is different in a number of important ways from traditional 911 services or Lingo E911 services. For customers that do not have E911 capability, when you dial 911, your call is routed from the Lingo network to the PSAP or local emergency service personnel using the address that you provided to Lingo. You will need to state the nature of your emergency promptly and clearly, including your location and telephone number, as PSAP personnel will not have this information at hand. PSAP personnel can help you effectively and will take necessary steps to provide you with the appropriate assistance, such as dispatching police, an ambulance and/or a fire truck.  You acknowledge and understand that when you dial 911 from your Lingo Equipment you will be routed to the general or administrative telephone number for the PSAP or local emergency service provider, and will not necessarily be routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls using traditional 911 dialing. Additionally, some PSAPs may from time to time refuse to accept calls from VoIP providers such as Lingo. As described herein, this Emergency Calling Service dialing currently is NOT the same as traditional 911 or E911 dialing, and at this time, does not necessarily include all of the capabilities of traditional 911 dialing.

    3. Service Outage:
      1. Power Outage and outage of 911 Services
        You acknowledge and understand that Emergency Calling Service and E911 Service dialing do not function without power. Should there be an interruption in the power supply, the Service and Emergency Calling Service (or E911 service) dialing will not function until power is restored. A power failure or disruption may require the Customer to reset or reconfigure Equipment before using the Service, Emergency Calling Service, or E911 service dialing.
      2. Broadband Service Outage
        You acknowledge and understand that service outages by your broadband provider will prevent, and that network congestion may slow, ALL Service including Emergency Calling Service and/or E911 service dialing.
      3. Other Service Outages
        You acknowledge and understand that if there is a Service outage for ANY reason, such outage will prevent ALL Service, including Emergency Calling Service and/or E911 service dialing. Such outages may occur for a variety of reasons, including, but not limited to those reasons described elsewhere in this Agreement.
      4. Limitation of Liability and Indemnification
        You acknowledge and understand that Lingo’s liability is limited as set forth in Section VII(B)(1) below, for any Service outage and/or inability to dial Emergency Calling Service or E911 service from your line or to access emergency service personnel. You agree to defend, indemnify, and hold harmless Lingo, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to Customer in connection with this Agreement or the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys’ fees) by, or on behalf of, Customer or any third party or user of Customer’s Service relating to the (i) absence, failure or outage of the Service, including Emergency Calling Service or E911 dialing; and/or (ii) inability of Customer or any third person or party or user of Customer’s Service to be able to dial 911 or to access emergency service personnel.

    4. Failure to Designate the Correct Physical Address for E911 and/or Emergency Calling Service Dialing
      The address which the Customer provides to Lingo is the address that is applied to your Service for both E911 and Emergency Calling Service dialing (also known as your “911 Service Address”). Should you need to change this address, you must change this in the “My Account” section at www.Lingo.com or contact Lingo Customer Care immediately to correct this address. It may take up to three (3) business days to effectuate a change or update of your 911 Service Address. Failure to provide the current and correct physical address and location of your Lingo Equipment as your 911 Service Address may result in the loss of E911 capability and/or will result in any Emergency Calling Service communication you may make being routed to the wrong local emergency service provider.

    5. Changing Your Primary Phone Number
      You acknowledge and understand that if you change your primary Lingo phone number you will not be able to change your 911 Service Address for seventy-two (72) hours. During that time, any E911 or Emergency Calling Service calls that you may make will be routed using the 911 Service Address that was in Lingo’s records before you changed your phone number.

    6. Change of Physical Location of Lingo Equipment
      You acknowledge and understand that E911 and Emergency Calling Service dialing does not function properly or may not function at all if you take your Equipment with you away from the 911 Service Address or physical location that you have registered with Lingo.

    7. Requires Re-Activation if You Move
      You acknowledge and understand that E911 and Emergency Calling Service dialing will not function properly or at all if you move or change the physical location of your Lingo Equipment to a different street address, unless and until you have successfully changed your 911 Service Address in the “My Account” section at www.Lingo.com or contacted Lingo Customer Service to correct your 911 Service address.

    8. Possibility of Network Congestion and/or Reduced Speed for Routing Emergency Calling Service
      You acknowledge and understand that there is a greater possibility of network congestion and/or reduced speed in the routing of an E911 or Emergency Calling Service communication made using your Lingo Equipment as compared to traditional 911 dialing over traditional public telephone networks. You acknowledge and understand that Emergency Calling Service dialing from your Lingo Equipment will be routed to the general or administrative telephone number for the local emergency service provider, and will not be routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls at such local provider’s facilities when such calls are routed using traditional 911 dialing. You acknowledge and understand that there may be a greater possibility that the general or administrative telephone number for the local emergency service provider will produce a busy signal or will take longer to answer, or not answered at all, as compared to those 911 calls routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls using traditional 911 dialing.

    9. Automated Number Identification
      For Customers without E911 service, it is not possible for the PSAP and the local emergency personnel to identify your phone number when you dial 911 to access Emergency Calling Service dialing. Lingo’s system is configured in most instances to send the automated number identification information; however, the phone system routes the traffic to the PSAP and the PSAP itself must be able to receive the information and pass it along properly, and they may not yet be technically capable of doing so. You acknowledge and understand that PSAP and emergency personnel may not be able to identify your phone number to return your call if the call is unable to be completed, is dropped or disconnected, or if you are unable to speak to tell them your phone number and/or if the Service is not operational for any reason, including without limitation those listed elsewhere in this Agreement.

    10. Automated Location Identification
      For Customers without E911 service, it is not possible to transmit identification of the address that you have listed to the PSAP and local emergency personnel for your area when you use Emergency Calling Service dialing. You acknowledge and understand that you will need to state the nature of your emergency promptly and clearly, including your location, as PSAP personnel will NOT have this information. You acknowledge and understand that PSAP and emergency personnel will not be able to find your location if the call is unable to be completed, is dropped or disconnected, if you are unable to speak to tell them your location and/or if the Service is not operational for any reason, including without limitation those listed elsewhere in this Agreement.

    11. Alternative Emergency Calling Service Arrangements
      You acknowledge that Lingo does not offer primary line or lifeline services. You should always have an alternative means of accessing traditional 911 or E911 services.

  3. SERVICE, RATES, TERM AND FEES
    1. Rates and Charges for the Service
      Lingo’s rates and charges for the Service are published on www.Lingo.com. You are responsible for payment of the rates and charges in effect and posted on www.Lingo.com when you enroll in a particular plan, or as later modified from time to time pursuant to Section I following three (3) days of Lingo’s posting changes on www.Lingo.com or three (3) days following Lingo’s communication of such changes to you by e-mail.

    2. Service Agreement Term
      1. Except for Lingo Business, for customers who subscribe to Lingo:
        • There is no Service term applicable to such customers. We will provide our service to you indefinitely, until the account is cancelled by the Customer or by Lingo in accordance with the provisions of these Terms and Conditions (Section VI). 
        • Upon service termination or cancellation by the Customer or by Lingo after the Activation Date, the Customer must return to Lingo any equipment provided by Lingo to the Customer. An equipment recovery fee not to exceed $75.00 will be charged if the Equipment is not returned in accordance with the requirement listed in subparagraph V below.

      2. For Lingo Business customers that choose a twelve (12) or twenty-four (24) month term of service:
        • We will provide our service to you indefinitely, until the account is cancelled by the Customer or by Lingo in accordance with the provisions of these Terms and Conditions (Section VI).
        • However, if Service is terminated or cancelled by the Customer or by Lingo prior to the end of the chosen a twelve (12) or twenty-four (24) month term, the Customer will be billed an early termination fee of $175.00.
        • Upon service termination or cancellation by the Customer or by Lingo after the Activation Date, the Customer must return to Lingo any equipment provided by Lingo to the Customer. An equipment recovery fee not to exceed $75.00 will be charged if the Equipment is not returned in accordance with the requirement listed in subparagraph V below.

      3. For Customers who subscribe to the annual prepaid plan (Talk 365):
        • Annual prepaid plan (Talk 365) subscriptions will automatically renew at the end of each annual term for an additional full year, and Lingo may charge the Customer’s credit card for the applicable amount, unless the Customer cancels the Service by calling Lingo’s Account Management Department at the toll-free number listed on the first page of your invoice at least ten (10) days before the end of the annual subscription term.
        • Upon service termination or cancellation by the Customer or by Lingo after the Activation Date, the Customer must return to Lingo any equipment provided by Lingo to the Customer. An equipment recovery fee not to exceed $75.00 will be charged if the Equipment is not returned in accordance with the requirement listed in subparagraph V below.
      4. For all Customers: Termination or cancellation of Service does not excuse the Customer from paying all unpaid, accrued charges due in relation to this Agreement.
      5. The Activation Date for all customers will be within seven (7) days after the Customer signs up for the Service.

    3. Disconnect Fee
      1. Except as otherwise set forth in this subparagraph C, Customers will not be subject to a Disconnect Fee if they cancel or terminate their account with Lingo at any time.
        • Customers who are currently subscribed under the Talk 365 plan will be refunded the unused portion of subscription charge and taxes. Refunds will be issued within sixty (60) days of cancellation.
        • Business and residential Customers will not be charged any Disconnect Fee for changing telephone numbers, while keeping the same number of lines.
        • Disconnect Fee will be waived in the event that you decide to cancel the service within the period of your service agreement, if (a) there is a material increase in the monthly subscription fee and charges (other than taxes), (b) the length of your service agreement is extended, (c) the disconnect fee or the rebate recovery fee is increased (as described in subparagraph Y below), (d) the calling rate per minute to the top five calling destinations on your account (with respect to the number of minutes usage in the previous month) is materially increased, or (e) the removal of any of your top five calling destinations in your unlimited calling plan and Lingo's change of that destination to metered treatment in which you are billed for each call made, provided that you cancel the service by calling Lingo’s ACCOUNT MANAGEMENT DEPARTMENT within thirty (30) days of the change and your account has no overdue payments at the time of cancellation.
        • A material increase in rates or charges is defined as follows:
          • More than fifteen percent (15%) of your monthly subscription charge.
          • More than a fifteen percent (15%) OR more than a two (2) cents per minute increase in the calling rate from your current rate, whichever is higher, to any of your top five calling destinations based on minute usage during the previous full month of billing.
          • Removal of any of your top five calling destinations in your unlimited calling plan and Lingo’s change of that destination to metered treatment in which you are billed for each call made.
      2. For all Customers, cancellations will only be accepted via phone through Lingo’s Account Management Department at the toll-free number listed on the first page of your invoice, and will be effective upon the date that you cancel with a Lingo Account Management Representative. You will be given a cancellation confirmation number by the representative. Service cancellation requests by mail, e-mail, fax, equipment return, or any other form of non-telephonic communication requests will not be accepted. Lingo’s Account Management Department is open from Monday to Friday between 9 a.m. and 9 p.m. EST, and Saturday and Sunday between 9 a.m. and 5 p.m. EST. Lingo does not schedule cancellations for a future date.  Monthly charges for Service cancellations that are made during a billing cycle will not be pro-rated.

    4. Phone Number Transfer on Service Disconnection
      If you wish to cancel your Service and port (i.e., transfer) your current Lingo phone number to another carrier or service provider, it is your responsibility to ensure that your current Lingo phone number has already been successfully ported to your new carrier or service provider prior to requesting cancellation of your account with Lingo. CANCELLATION OF YOUR LINGO ACCOUNT PRIOR TO THAT CONFIRMATION FROM YOUR NEW SERVICE PROVIDER THAT YOUR CURRENT LINGO TELEPHONE NUMBER HAS SUCCESSFULLY PORTED SHALL RESULT IN YOUR INABILITY TO USE YOUR CURRENT LINGO NUMBER IN THE FUTURE BECAUSE LINGO WILL NOT BE ABLE TO PORT THAT NUMBER AFTER YOU CANCEL YOUR LINGO SERVICE. EVEN IF YOU HAVE SWITCHED YOUR SERVICE TO ANOTHER SERVICE PROVIDER, WITH OR WITHOUT PORTING YOUR CURRENT LINGO PHONE NUMBER, YOU STILL MUST CANCEL THE SERVICE BY CALLING THE LINGO ACCOUNT MANAGEMENT DEPARTMENT. UNTIL YOU FORMALLY CANCEL THE SERVICE, YOU WILL CONTINUE TO BE BILLED (AND CHARGED ON YOUR CREDIT CARD) FOR THE SERVICE AND YOU WILL BE RESPONSIBLE FOR PAYING THE BILLED CHARGES IN FULL, INCLUDING ANY DISCONNECT, EQUIPMENT RECOVERY AND REBATE RECOVERY FEES THAT MAY BE APPLICABLE.

      Upon contact from your new provider that you desire to port your telephone number, Lingo will use reasonable efforts to release your Lingo telephone number to your new service provider, if such new service provider is able to accept such number.  Lingo makes no guarantees on the ability to port your number.

    5. Fees for Changing Calling Plan

      If at any time during the term of Service, Customer changes from one calling plan to another, the Customer may be charged a onetime Plan Change Fee not to exceed $24.95 each time a Plan Change is made.

    6. Residential Use of Service and Device
      If you have subscribed to Lingo’s residential Service, the Service and Device are provided to you as a residential user (single family households), for your personal, residential, non-business and non-professional use. This means that you are not using them for any commercial, non-profit, governmental, multi-family, or other non-residential activities, including but not limited to home office, business, sales, telecommuting, telemarketing, autodialing, continuous or extensive call forwarding, fax broadcast, fax blasting or any other activity that would be inconsistent with normal, single-family residential usage patterns. This also means that you are not to resell or transfer the Service or the Device to any other person for any purpose, or make any charge for the use of the Service, without express written permission from Lingo in advance. You agree that your use of the Service and/or Device, or the use of the Service and/or Device provided to you by any other person for any commercial or governmental purpose will obligate you to pay Lingo’s higher rates for business Service on account of all periods, including past periods, in which you use, or used, the Service for commercial or governmental purposes.
      Lingo reserves the right to immediately terminate or modify Service, or offer a transfer to another higher price Service plan (and charge you the Plan Change Fee described in Section III(E)), if Lingo determines, in its sole discretion, that a residential Customer is using the Service and devices for an unauthorized and/or impermissible purpose, including non-residential, multi-family, commercial, non-profit, or governmental usage. In making this determination, Lingo may consider a number of factors, including but not limited to unusual calling patterns including the number of destinations called per month, usage volume patterns, the volume of calls to high price premium/special services/personal prefix numbers, whether there is continuous calling or dialing activity, and whether calls include continuous dialog activity, whether there is usage from outside the Service address, etc.
      Without limiting the forgoing, usage of residential Service is also subject to Lingo’s acceptable and fair usage policy. Under this policy, Service usage is expressly limited to 2,200 calling minutes per month, calculated on an aggregated basis and inclusive of all minutes. Lingo may contact you if your Service usage approaches this acceptable and fair usage policy Service usage limit. Lingo reserves the right to immediately terminate or modify Service, or offer a transfer to another higher price Service plan (and charge you the Plan Change Fee described in Section III(E)), if Lingo determines, in its sole discretion, that usage is inconsistent with its acceptable and fair usage policy.  

    7. Business Use of Service and Device
      If you have subscribed to any of Lingo’s business plans, the Service and Device are provided to you as a small business user. This means that you are not to resell or transfer the Service or Device to any other person for any purpose. You agree that the Lingo business plan to which you have subscribed does not confer the right to use the Service for auto-dialing, continuous or extensive call forwarding, telemarketing of any kind, inbound/outbound centralized or distributed call center activity, fax broadcasting or fax blasting, or voicemail broadcasting or blasting. Lingo reserves the right to immediately terminate, modify or offer a transfer to another higher price Service plan (and charge you the Plan Change Fee described in Section III(E)), if Lingo determines, in its sole discretion, that Customer’s Service is being used in violation of this Section III(G).

    8. Notice of Rate/Price Changes
      As set forth in Section I, Lingo may change the rates, prices and charges for the Service at any time and such changes will be effective, prospectively, within three (3) days of posting on www.Lingo.com or within three (3) days of communication to you by e-mail. Unless the Customer cancels the Service in accordance with Section VI below, such changes will automatically be incorporated by reference into this Agreement. From time to time, Lingo may offer new rate plans and such rate plans may be available to customers upon request by contacting the Lingo Customer Care Department. Customers’ requests to be included in a new rate plan will be effective with the following billing cycle, and calls made prior to the new effective date will be charged at the previous plan rates.

    9. Rounding Policy
      For billing purposes, the length of each metered call is rounded up to the next full minute.  If the computed charge for a call includes a fraction of a cent, the fraction is rounded up to the nearest whole cent. If the computed charges for taxes and surcharges include a fraction of a cent, the fraction is rounded up to the nearest whole cent.

    10. Calls to International Mobile Telephones; International Special Services Calls
      Lingo’s advertised rates for international calls are generally the rates charged for calls to landline telephones. Most calls to international mobile telephones, or to international telephone numbers considered to be special services calls, are charged a different (usually higher) rate than calls to landline telephones. The rates you will be charged are set forth in the calling plan rate tables and are typically designated by a "MOB," "cellular,” "mobile," or "M" notation.   For a detailed list of mobile, premium, special service, or personal destinations outside the plan (and thus subject to additional charges), click on the “Rates” page of www.Lingo.com and then click on “Mobile Prefix List” or “Premium/Special Service/Personal Prefix List.”
      For a list of mobile destinations covered by your plan, you may contact Customer Care or log in to your Lingo account.

    11. Timing of Calls
      Generally, timing of metered calls begins when the called party or an automated answering device (such as an answering machine or a facsimile machine) answers the call, and ends when one of the parties disconnects from the call. However, some foreign carriers (with whom Lingo must interconnect in order to terminate calls to foreign countries) designate a call as "answered" when the called party’s line rings or after a certain number of rings, and will charge Lingo for a completed call. In these situations, Lingo will charge for the call as if it were answered by the called party.

    12. Use of Service and Device by Customers Outside the United States
      Lingo does not presently offer or support the Service to customers located in other countries. If you remove the Device to a country other than the United States and use the Service from there, you do so at your own risk, including the risk that such activity violates local laws in the country where you do so. You are liable for any and all use of the Service and/or Device by any person making use of the Service or Device provided to you. Lingo reserves the right to cancel or suspend the Service if it is determined that the Service is being used outside the United States.

    13. Loss of Service Due to Power Failure or Loss of Internet Access, Broadband or DSL Service
      The Service does not function without power or Internet access, broadband or DSL service. Should there be an interruption in the power supply, or the loss of Internet access, broadband or DSL service, the Service will not function until power and your Internet access, broadband or DSL service are restored. A power failure or disruption may require you to reset or reconfigure Equipment before using the Service. Power disruptions or failures and the loss of Internet access, broadband or DSL service will also prevent dialing to emergency service numbers including the Emergency Calling Service calling feature.

    14. Copyright / Trademark / Unauthorized Usage of Device, Firmware or Software
      The Service and Device and any firmware or software used to provide the Service (or provided to Customer in conjunction with providing the Service), or embedded in the Device, and all Service, information, documents and materials on Lingo’s website(s) are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively "marks") of Lingo are and shall remain the exclusive property of Lingo and nothing in this Agreement shall grant you the right to license or to use such marks. You acknowledge and agree that you are not given any license to use the firmware or software used to provide the Service or provided to Customer in conjunction with providing the Service, or embedded in the Device, other than a non-transferable, revocable license to use such firmware or software (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement, and that the Device is exclusively for use in connection with the Service. If you decide to use the Service through an interface Device not provided by Lingo, which Lingo reserves the right to prohibit in particular cases or generally, or are required to use third party software to enable the use of Lingo accessories, like softphone, you promise that you have acquired, and all times during your use, possess all of the required rights, including software and/or firmware licenses, to use that interface Device of third party software with the Service, and you will indemnify and hold harmless Lingo against any and all liability arising out of your use of such interface Device of software with the Service or any of its accessories.

    15. Tampering with the Device
      You agree not to change the electronic serial number or equipment identifier of the Device, or to perform a factory reset of the Device, without express permission from Lingo. Lingo reserves the right to terminate your Service should you tamper with the Device, leaving you responsible for the full month’s charges to the end of the current term, including without limitation unbilled charges, plus any applicable Disconnect Fee, all of which immediately become due and payable.

    16. Device Replacement
      In cases where the Customer claims that the Device is defective, then a Device will be replaced at no charge to the Customer subject to trouble shooting with Lingo’s Technical Support. In addition, if the defective device is not returned within fourteen (14) days from the Customer receiving a new device the Customer may be charged a replacement fee not to exceed $75.00.

    17. Theft of Service
      You agree to notify Lingo immediately, in writing, by electronic mail or by calling Lingo Customer Care, if the Device is stolen or if you become aware at any time that your Service is being stolen or used fraudulently. When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft or fraudulent use of Service. Failure to do so promptly after discovery of the improper use may result in the termination of your Service and additional charges to you. You will be liable for all use of the Service if your Device is stolen from you and any and all stolen Service or fraudulent use of the Service. Notwithstanding anything herein to the contrary, credits will not be issued for charges resulting from fraud that arises out of third parties hacking into your Equipment, other equipment used by you, or the Internet. This includes, but is not limited to, modem hijacking, wireless hijacking, or other fraud arising out of a failure of your internal or corporate procedures. Lingo will not issue credit for invoiced charges for fraudulent use resulting from your negligent or willful acts or those of an authorized user of your Service.

    18. Service Distinctions
      You acknowledge and understand that the Service is not a telephone service. Important distinctions exist between telephone service and the enhanced Service offering provided by Lingo. The Service is subject to different regulatory treatment than phone service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies.

    19. Collect Call and Operator Services
      Lingo does not offer collect call or operator services via the Service.

    20. International DIDs or Phone Numbers
      Lingo charges an additional monthly fee for international (non-United States) direct inward dial phone numbers (“DID”) for those customers who wish to order that feature.  Monthly fees for international DID numbers vary and are available from Lingo’s Customer Service Department.  Customers that have international DIDs are provided with these numbers based on current United States and overseas regulations. These regulations are subject to change without notice and Lingo may be required to discontinue this Service, without notice. Lingo reserves the right to discontinue International DID services for any reason at any time and is only obligated to refund the pro-rated monthly fee.

    21. International Services
      1. Foreign Carrier Restrictions. Foreign carriers or regulatory agencies may impose, upon the portion of the end-to-end international service or facilities they provide, certain limitations or restrictions that may limit your ability use the Service. You must conform to any limitations or restrictions imposed by the foreign carriers or agencies.
      2. Foreign Carrier Acts or Omissions.

        1. When other U.S. or foreign carriers, and foreign telecommunications administrations, use facilities to establish connections to points not reached by Lingo’s network, Lingo is not liable for acts or omissions of other carriers or foreign telecommunications administrations.
        2. International calls are priced on the basis of the country and city codes dialed by you. When the facilities of other U.S. or foreign carriers, or foreign telecommunications administrations, are used in establishing connections to points not reached by Lingo’s network, Lingo is not liable for refunds or damages if those calls do not terminate in the country, city or area codes associated with the called number.

    22. Surcharges and Fees
      In addition to surcharges and fees that may be found in the applicable Calling Plan described on www.Lingo.com, Lingo may impose additional rates and charges.  These include:
      1. Federal Universal Service Fee: Lingo imposes a surcharge to recover the Federal Universal Service Fee that it is required to pay to a federal program that ensures that basic phone service is available in all areas of the country at affordable rates. Additionally, the Universal Service Fee/Fund (USF) provides for discounted telecommunications services for schools, libraries and rural health-care facilities. All telecommunications providers are required to pay into the Federal USF, and their contributions may be recovered from customers. The USF contribution percentage is reviewed and adjusted quarterly by the FCC. The USF rate for the current quarter can be found at www.lingosupport.com.  Lingo will add a surcharge to its invoices to recover this cost from customers.
      2. Administrative, Regulatory, and Compliance Fee:  Lingo charges an Administrative, Regulatory, and Compliance Fee of $2.99 per phone number per month. This Fee is not a government mandated charge, but represents compensation for administrative, compliance, and other services that Lingo performs in connection with the provision of the Service.  What is included in the Fee is subject to change from time to time.
      3. Emergency Services Fee: Lingo charges an Emergency Services fee for providing nationwide emergency 911 service in compliance with Federal and State regulations. The Emergency Service Fee is $1.99 per account per month and is separate from any state or locally mandated Emergency 911 charge.
      4. Equipment Recovery Fee: Customers whose service is cancelled or terminated must return all Lingo-provided Equipment within fourteen (14) days of termination or cancellation. All components must be included and equipment must be in good condition, as determined by Lingo.  Customer is responsible for paying for the return shipping and handling of Equipment.  Lingo will provide a return label for shipping of the equipment to the Customer and will apply the return shipping and handling fee, not to exceed $9.95, to the Customer’s bill. An Equipment Recovery Fee not to exceed $75.00 will be charged if the Equipment is not returned in accordance with the foregoing requirements.   
      5. Reactivation Fee:  This fee recovers Lingo’s cost to reinstate an account that has been suspended or cancelled for non-payment.  The fee shall not exceed $25.00 per account reactivated. 

    23. Taxes
      1. All taxes, tax-like charges, and tax-related surcharges are referred to collectively as "Tax(es)." Lingo may elect to impose and collect such Taxes, unless otherwise constrained by court order or direction.
      2. You agree to pay all Taxes imposed. If Lingo has collected Taxes and a challenged Tax is found to have been invalid and unenforceable, Lingo, in its sole discretion, will either reduce Service rates for a fixed period of time in the future in order to flow-through to customers an amount equivalent to the amount of tax refunds collected by Lingo, or Lingo will credit or refund such amounts to affected customers (less its reasonable administrative costs), if the amounts collected were retained by Lingo or if they were delivered to the jurisdiction and returned to Lingo, or it will negotiate an arrangement with the jurisdiction to provide a future benefit for customers in that jurisdiction.
      3. If you provide Lingo with a duly authorized tax exemption certificate, Lingo will exempt you in accordance with law, effective on the date Lingo receives the certificate.

    24. Misdialing and Incompatibility with Other Services
      1. Non-Usage or Misdialing
        Neither credit nor refund for Service will be issued for non-usage of the Service or misdialing while using the Service.

      2. With Other Equipment and Services
        You acknowledge that the Service is not compatible with all non-voice communications equipment, including but not limited to home security systems, TTY, TIVo®, satellite television systems, PBX, other private telephone networks, or modems. You waive any claim against Lingo for interference with or disruption of these services and equipment, as well as any claim that Lingo is responsible for any disruption to your business, if applicable.
      3. Incompatibility with Certain Broadband, Modem, and Other Services You acknowledge that our Service presently is not compatible with AOL® cable broadband service and TIVo®. There may also be other services with which our Service may be incompatible such as modems provided by broadband providers. We do not warrant that our services will be compatible with all broadband services and modems and disclaim any express or implied warranties regarding the compatibility of our Service with any particular broadband service or modems.

    25. Directory Listings
      The phone numbers you get from Lingo will not be listed in any telephone directories.  However, any phone number(s) you transfer from your local phone company may be or remain listed.  Lingo has no control over directory listings. 

  4. RESTRICTIONS ON THE USE OF SERVICE
    1. Lingo offers the Service subject to availability of facilities, limitations of service offerings, and the provisions of this Agreement.

    2. Service provided by Lingo under this Agreement will not be used by Customer: (1) for any unlawful purpose; (2) for making telephone calls that use automatic dialing devices and terminate into electronic information services, pay-per-call services, or other domestic or international audiotext services; (3) for international call-back offerings using uncompleted call signaling to any country, when that country has prohibited such an offering by statute or regulatory decision; or (4) for unauthorized purposes under Section III(F) or Section III(G) above.

    3. Lingo may (1) deny, for any lawful reason, your request for Service, or (2) limit or allocate the facilities available to or used by any Service, if necessary, to manage its network in an efficient manner, meet reasonable Service expectations, furnish Service to existing and future customers based on forecasted customer requirements, or for any other lawful reason.

    4. Lingo may, without notice (consistent with governing laws or regulations), block traffic to or from specific countries, country codes, cities, city codes, local telephone exchanges ("NXX exchanges"), individual telephone stations, groups or ranges of individual telephone stations, or calls using certain customer authorization codes, whenever Lingo deems it necessary to take such action to prevent (1) the unlawful use of Service; (2) nonpayment for Service; (3) the use of Service in violation of this Agreement; or (4) network blockage or the degradation of Service furnished to you or other customers.

  5. PAYMENT OBLIGATIONS
    1. You must provide Lingo with a valid credit card number when the Service is activated. If the credit card expires, you close your credit card account, your billing address changes, or the credit card is cancelled and replaced because of loss or theft, you must advise Lingo immediately. Lingo will invoice all charges on a monthly basis, in advance, to your credit card, including but not limited to: activation fees and monthly Service fees, advanced feature charges, Equipment purchases, and shipping and handling charges. If you subscribe to a prepaid annual plan, we will bill and charge you in advance for the service plan fee due for the entire year, plus any associated taxes, 911 fees and surcharges in arrears on a monthly basis.  Any charges not included in your rate plan and any additional usage charges are billed after each billing period. If Lingo changes its rates, recurring monthly charges affected by such change will be assessed prospectively at the new rate for the remainder of the full billing period during which the new recurring charge rate became effective. 

    2. Lingo may terminate your Service at any time in its sole discretion, if any charge to your credit card on file with Lingo is declined or reversed, your credit card expires and you have not provided Lingo with a valid replacement credit card, or in case of any other non-payment of account charges. Termination of Service for declined or expired card, reversed charges, or non-payment leaves you fully liable to Lingo for all charges accrued before termination, Disconnect Fees, Rebate Recovery Fees and Equipment Recovery Fees (where applicable), and all costs incurred by Lingo in collecting such amounts including but not limited to collection costs and attorneys’ fees.

    3. You are responsible for payment of all charges for the Service furnished to you and anyone authorized by you to use your Service. This responsibility is not changed by virtue of any use, misuse, or abuse of your Service undertaken or caused by third parties.

    4. You must promptly notify Lingo of any change in your invoicing address or, if applicable, in the credit card or bank account used for payment. You should notify the Lingo Customer Care Department at the toll-free number listed on the first page of your invoice or by e-mailing Lingo at the following address: CustomerCare@Lingo.com.

    5. Lingo will invoice Customer for Service on a monthly basis in advance and all payments are due and payable by Customer without demand or setoff within thirty (30) days from the invoice date (the "Due Date"). Amounts not paid within thirty (30) days of the invoice date will be considered past due. If you make any late payments, and we bill you for the Service, we will charge you a late fee of one and one half percent (1.5%) per month, which we apply to that period’s charges and any outstanding charges and late payment charges that remain unpaid at the time of the next bill. If the state law where you receive the Service requires a lower rate, we will apply that rate.

    6. If Lingo becomes concerned at any time about your ability to pay for the Service, Lingo may require that you pay its charges within a specified number of days and that you make such payments in cash or the equivalent of cash.

    7. If Lingo hires a collection agency to collect, or attempt to collect, any charges owed Lingo, you will be liable to Lingo for all costs that Lingo incurs, including without limitation collection agency fees, reasonable attorneys’ fees, and court or arbitration costs.  If Lingo incurs any fees or expenses, including reasonable attorneys’ fees, in collecting, or attempting to collect, any charges owed Lingo other than by hiring a collection agency, you will be liable to Lingo for the payment of all such fees and expenses reasonably incurred.

    8. If billing systems or other support is not available for a Service, feature, surcharge, tax or other charge element at the time of Service provision, Lingo will bill for that Service, feature, surcharge, or other charge element as soon as it is capable of doing so.

    9. No Credit Allowances for Interruption of Service. You acknowledge and agree that the Service is provided "as is." Credit allowances for interruption of Service, including international calling services, will not be provided.

    10. If you dispute any charges, you must notify us in writing at CustomerCare@lingo.com or at the address below within thirty (30) days of receiving your credit or debit card statement. If you do not notify us in writing in a timely manner, you agree to waive any right to contest such charges.

      Lingo, Inc.
      805 Wright Brothers Boulevard,
      Cedar Rapids, IA, 52404
      Attention: Customer Care Department

  6. CANCELLATION OF SERVICE
    1. By the Customer
      1. If you cancel your Service, and you initially subscribed to Lingo before September 24, 2010, you will be charged a Disconnect Fee and Rebate Recovery Fee except as indicated in Sections III(C) and III(V) above.  Customers who initially subscribe on or after September 24, 2010, may be subject to an Equipment Recovery Fee if they fail to return Equipment, as described in Sections III(B)(1) and III(V) above.
      2. If you cancel your Service with Lingo, you will not be able to use the Device or Equipment.
      3. All cancellations will be effective on the date that you call Lingo’s Account Management Department and cancel the service with an Account Management Representative who will also issue a cancellation confirmation number. Lingo does not have the ability to schedule a cancellation for a future date. It may take up to three (3) business days to actually terminate the provision of the Service to you.
      4. Your credit card will be charged for any usage after you contact Lingo to cancel your Service.
      5. All cancellations must be made by calling Lingo’s Account Management Department at the toll-free number listed on the first page of your invoice. Lingo’s Account Management Department is open from Monday to Friday between 9 a.m. and 9 p.m. EST, and Saturday and Sunday between 9 a.m. and 5 p.m. EST. Cancellation requests by mail, e-mail, fax, equipment return, or any other form of non-telephonic communication requests will not be accepted.

    2. By Lingo
      1. Lingo reserves the right to discontinue furnishing the Service, cancel your account, and/or block your access to the Lingo network, without incurring any liability, immediately and without notice if Lingo deems that such action is necessary to prevent or to protect against fraud or to otherwise protect Lingo’s personnel, agents, facilities, or services. Without limitation, Lingo may take such actions if:<
        1. You refuse to furnish information, or furnish false information, that (i) is essential for billing; or (ii) pertains to your creditworthiness, your past or current use of common carrier communications service, or your planned use of such service;
        2. You indicate that you will not comply with a request for security for the payment for the Services;
        3. Your Service usage charges indicate a likelihood of non-payment or possible fraud;
        4. You have been given written notice by Lingo of any past due amount (which remains unpaid, in whole or in part for thirty (30) days or more) for any of Lingo’s or an affiliated carrier’s service to which you either subscribe or had subscribed or used;
        5. You either refuse to pay when billed for Service or indicate to Lingo, its affiliate, Primus Telecommunications, Inc., or an entity billing on Lingo’s behalf that you do not intend to pay for Service used by you;
        6. You use, or attempt to use, Service with the intent to avoid the payment, either in whole or in part, of the charges for the Service by (i) using or attempting to use Service by rearranging, tampering with, or making connections to the Service in an unauthorized manner; or (ii) using tricks, schemes, false or invalid numbers, false credit devices, or other fraudulent means or devices;
        7. You act, or fail to act, in a manner that hinders or frustrates any investigation by Lingo or others having legal authority to investigate your legal obligations;
        8. Your telephone equipment fails to pass back to Lingo the appropriate signal to start and stop billing for a call;
        9. You were previously provided with notice of breach of these terms and conditions or other contract with Lingo, took corrective action, but thereafter engaged in the same breach activity;
        10. You act in a manner that is threatening, obscene, harassing, or abusive to Lingo personnel; or
        11. You act in violation, or your usage is deemed in violation, of Sections III(H) or III(I) above.
      2. Lingo reserves the right to discontinue furnishing the Service, cancel your account, and/or block your access to the Lingo network, without incurring any liability, immediately upon written notice to you if:

        1. Any invoice charges remain outstanding and owed by you after the thirtieth (30th) day from the date of the invoice notifying you of the charges; or
        2. You violate any of your duties or obligations under this Agreement.
      3. The discontinuance of Service by Lingo pursuant to these provisions does not relieve you of any obligation to pay Lingo for charges due and owing for Service(s) furnished up to the time of discontinuance. Customers will be subject to an Equipment Recovery Fee if their service is cancelled or terminated and they fail to return Equipment, as described in Section III(B)(1) and III(V) above.
  7. LIABILITY
    1. Lingo, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to Customer in connection with this Agreement or the Service will not be liable for: (i) any failure of performance due to causes beyond its control, including, but not limited to, acts of God, fires, power outages, floods or other catastrophes; national emergencies, insurrections, riots or wars, acts of terrorism, strikes, lockouts, work stoppages or other labor difficulties; and any law, order, regulation or other action of any governing authority or agency thereof; (ii) delayed installation of Lingo’s facilities or commencement of Service; (iii) any damages associated with Devices not provided by Lingo and/or any third-party software (including but not limited to the download thereof) recommended or required for use with any of the Lingo accessories.
    2. With respect to any other factual allegation, legal claim, or dispute by you or by any others, for damages associated with the ordering (including the reservation of any specific number for use with a Service), installation (including delays thereof), provision, termination, maintenance, repair, interruption, or restoration of any Service or facilities offered by Lingo, Lingo’s liability, if any, will be limited as follows:
      1. With respect to the attempts to route calls to Public Safety Answering Points or municipal emergency service providers, as described in Section II, Lingo’s liability, if any, will be limited to the lesser of: (a) the actual monetary damages incurred and proved by you as the direct result of Lingo’s action, or failure to act, in routing the call, or (b) the sum of $1,000.00.
      2. With respect to the provisioning of, or any error or omission in, data, information, or content furnished in connection with any service provided by Lingo, for example, Directory Assistance, Lingo’s liability will be limited to the lesser of: (a) the amount of actual money damages proven by you to have been incurred as the proximate result of your reliance on such data, information, or content; or (b) $100.00.
      3. If you request that your current telephone number be ported to Lingo, it may take fifteen (15) business days or longer to fulfill the request even though many numbers can be ported within a ten (10) day period.  In any event, Lingo shall not be liable for any delays or incompletion or costs or charges pursuant to a delay or incompletion in local number portability (LNP).  Lingo makes no guarantees on the ability to port your number. Check the number porting tool on www.Lingo.com.
      4. For any failure or interruption of Service, Lingo’s liability will be limited to the provision of a credit for the monthly recurring charges applicable to the period during which Service was not available.

    3. IN NO EVENT WILL LINGO, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, INCLUDING LOST PROFITS (WHETHER OR NOT LINGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES) BY REASON OF ANY ACT OR OMISSION IN ITS PERFORMANCE UNDER THIS AGREEMENT. THIS SECTION SURVIVES TERMINATION OF THIS AGREEMENT.
    4. Lingo, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to Customer in connection with this Agreement or the Service will be indemnified, defended, and held harmless by you against all claims of loss or damage arising from the use of Service furnished by Lingo, including:

      1. Allegations or claims for libel, slander, invasion of privacy, or infringement of copyright arising out of the material, data, information, or other content transmitted via the Service;
      2. All other allegations and claims arising out of any intentional act or omission by you or others authorized by you to use the Service, in connection with any Service provided by Lingo; and
      3. Allegations or claims that you have not acquired or possess the requisite rights to any Devices not provided by Lingo and/or third party software for use in conjunction with Lingo accessories as described in Section III(N).
    5. E. LINGO MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES ABOUT ITS SERVICES AND DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE OR NON-INFRINGEMENT.  LINGO DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY ON LINGO’S BEHALF AND YOU MAY NOT RELY ON ANY STATEMENT OF WARRANTY AS A WARRANTY BY LINGO.
    6. Lingo, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to Customer in connection with this Agreement or the Service will not be liable for any act or omission of any other company or companies furnishing a portion of the Service, or from any act or omission of a third party, including those vendors participating in Lingo offerings made to you, or for any unauthorized interception of Customer’s communications or other breaches of privacy attributable in part to the acts or omissions of Customer or third parties, or for damages associated with the Service, or Equipment that it does not furnish, or for damages that result from the operation of Customer provided systems, Equipment, facilities or services that are interconnected with the Service.
    7. You agree that the Service is provided on an “as is” basis. 

  8. DISPUTE RESOLUTION
    IT IS IMPORTANT THAT YOU READ THIS ENTIRE SECTION CAREFULLY. THIS SECTION PROVIDES FOR RESOLUTION OF CERTAIN DISPUTES THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION. BY THIS AGREEMENT, BOTH YOU AND LINGO WAIVE THE RIGHT TO A TRIAL BY JURY.

    1. Conciliation
      In the event of any dispute, claim, question, or disagreement arising from or relating to the Service, the Device, or this Agreement or the breach thereof, the parties hereto shall use their best efforts to resolve the dispute, claim, question, or disagreement. Before you take a dispute to arbitration or to small claims court, you must first contact our Customer Care Department at the toll-free number listed on your Lingo invoice for the Service, or write to us at the following address, and give us an opportunity to resolve the dispute:

      Lingo, Inc.
      805 Wright Brothers Boulevard,
      Cedar Rapids, IA, 52404
      Attention: Customer Care Department

      You must describe your dispute and provide Lingo with any supporting documentation. Likewise, if Lingo has a dispute with you, it will notify you by letter sent to your billing address, or by e-mail to your designated e-mail address, and attempt to resolve it before pursuing a small claims court complaint or arbitration. If you and Lingo do not reach a resolution within a period of sixty (60) days, then, upon notice by either party to the other, all disputes, claims, questions, or differences shall be finally resolved either by the Small Claims process described in subparagraph B below, if applicable, or by final, binding arbitration administered by the American Arbitration Association (“AAA”) as described in subparagraph C below. Nothing in this subsection shall limit Lingo’s right to suspend or terminate service immediately in the event of any material breach of this Agreement by Customer, including nonpayment of charges when due.

    2. Small Claims
      Both you and Lingo have the right to assert any claim or claims against the other party cumulatively totaling under $8,000 in small claims court (or an equivalent court hearing only small claims) if the dispute qualifies for consideration by such a court. In no case shall such claim be heard by a jury. The claiming party (you or Lingo) also has the right to pursue such small claim(s) in binding arbitration as described below. The claiming party can choose whether to proceed initially in arbitration or in small claims court; but if for any reason a small claims court lacks jurisdiction, the claim(s) shall be resolved in arbitration in accordance with subparagraph C below.

    3. Binding Arbitration
      Except for claims resolved pursuant to the foregoing Small Claims provision, any controversy or claim arising out of or relating to the Service, the Device, or this Agreement or the breach thereof, shall be resolved by arbitration administered by the AAA in accordance with this Agreement and the AAA’s Commercial Arbitration Rules including, where deemed applicable by the AAA, the Supplementary Procedures for Consumer-Related Disputes and the Consumer Due Process Protocol. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall take place before a single neutral arbitrator. The arbitration shall be governed by the Federal Arbitration Act (9 U.S.C. Section 1 et seq.).
      You or Lingo may commence arbitration by contacting the AAA in writing at AAA Service Center, 2200 Century Parkway, Suite 300, Atlanta, GA 30345-3203, and demand arbitration of the dispute in accordance with the applicable AAA rules. Information about the arbitration process and the AAA’s Arbitration Rules and its fees are available from the AAA on the Internet at www.adr.org
      Any in-person arbitration hearing will be conducted at a location that the AAA selects in the state of a consumer’s primary residence, or, in the case of a business, its main office in the United States. Any arbitration shall remain confidential. Neither you nor Lingo may disclose the existence, content or results of any arbitration or award, except as may be required by law, or to confirm and enforce an award.
      If any portion of this Dispute Resolution Section (Section VIII) is determined to be unenforceable, then the remainder shall be given full force and effect.
      You have the right to be represented by counsel in arbitration. In conducting the arbitration and making any award, the arbitrator shall be bound by and strictly enforce the terms of this Agreement and may not limit, expand, or otherwise modify its terms. The arbitrator may not award punitive, exemplary or similar damages. The parties agree that an award of such damages will be void if issued.
      In the event the AAA declines for any reason to administer a dispute submitted to arbitration in accordance with this Agreement, then the dispute shall be resolved pursuant to the Small Claims provisions of this Agreement, if applicable. If resolution is not possible under the Small Claims procedures, the dispute shall be submitted to final binding arbitration before a single arbitrator selected in accordance with the applicable rules, fees and procedures administered by JAMS, as described in greater detail on the website www.jamsadr.com.

      The parties acknowledge and agree that this Agreement and products and Services offered by Lingo, including advertising, involve interstate commerce.

      NO DISPUTE MAY BE JOINED WITH ANOTHER LAWSUIT IN SMALL CLAIMS COURT, OR IN AN ARBITRATION, WITH A DISPUTE OF ANY OTHER PERSON, OR RESOLVED ON A CLASS-WIDE BASIS, EXCEPT WITH THE AGREEMENT OF ALL PARTIES. IN NO CIRCUMSTANCE WILL ANY PARTY BE REQUIRED TO ARBITRATE CLAIMS ASSERTED ON A CLASS-WIDE BASIS OR WHERE DIFFERENT PARTIES’ CLAIMS ARE JOINED. THE ARBITRATOR MAY NOT AWARD DAMAGES THAT ARE NOT EXPRESSLY AUTHORIZED BY THIS AGREEMENT AND MAY NOT AWARD PUNITIVE DAMAGES OR ATTORNEYS’ FEES UNLESS SUCH DAMAGES ARE EXPRESSLY AUTHORIZED BY A STATUTE. YOU AND LINGO BOTH WAIVE ANY CLAIMS FOR AN AWARD OF DAMAGES THAT ARE EXCLUDED UNDER THIS AGREEMENT.

      Despite Section I or any other provision of this Agreement, if Lingo makes a change to Section VIII relating to the arbitration of disputes, you may reject any such change and require Lingo to adhere to the language of this Section VIII when you initially entered into this Agreement.

      ANY CLAIM OR DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE DATE THE BASIS FOR THE CLAIM OR DISPUTE FIRST ARISES, UNLESS A SHORTER PERIOD IS PROVIDED ELSEWHERE IN THIS AGREEMENT

    4. Fees and Expenses of Arbitration
      If you file a request for arbitration, you will have to pay a filing fee and other fees in accordance with the AAA (or JAMS) fee schedule, except that Lingo will advance or pay such fees if that is required by the AAA (or JAMS) or to make the arbitration agreement lawful under the controlling state law. Under AAA rules, costs such as the arbitrator’s fees and expenses and an administrative fee may be allocated between the parties. Each party shall bear all of their own other costs and expenses incurred in participating in the arbitration, including without limitation travel and telephone costs.

    5. In addition to the procedures described in this Section for resolving a dispute, you may also have the right to file a complaint with an appropriate federal or state regulatory agency.

  9. MISCELLANEOUS PROVISIONS
    1. Entire Agreement.
      These Terms and Conditions constitute the entire agreement between you and Lingo, and supersede any and all prior agreements, oral or written, concerning the subject matter. If there is any inconsistency or conflict between the terms of any calling plan, promotion, and/or authorized written communications you have received and the provisions of this Agreement, the provisions of this Agreement will control.
    2. No Obligation to Assist in Switching to a Different Provider.
      If you either voluntarily cancel your Lingo account or if Lingo cancels your Service for any reason set forth above, Lingo will have no obligation whatsoever to assist you in any respect in switching from Lingo to another service provider.
    3. Assignment.
      Customer may not modify or assign this Agreement. In its sole discretion, Lingo may assign this Agreement.
    4. No Waiver of Rights by Lingo.
      If Lingo fails to enforce any right or remedy under this Agreement, that does not waive Lingo’s right to do so or waive any right or remedy that Lingo has for any other breach or failure.
    5. Binding Effect.
      This Agreement is binding upon you and Lingo and upon, respectively, your and Lingo’s respective agents, heirs, and successors.
    6. Severability.
      If any part or provision of this Agreement (including the dispute resolution provisions in Section VIII) is finally determined to be invalid or unenforceable under applicable law by an arbitrator or a court of competent jurisdiction, then that part or provision will be ineffective only to the extent of such invalidity or unenforceability, without in any way affecting the remaining parts or provisions of this Agreement.
    7. Governing Law
      This Agreement is governed by and construed under the laws of the Commonwealth of Virginia and applicable federal law, without regard to Virginia’s choice of law principles, except that the arbitration provisions in Section VIII shall be governed by the Federal Arbitration Act. This governing law provision applies no matter where you reside, or where you use or pay for the Services.
    8. Survival.
      Any liability or obligation of a party to the other party under the provisions of Sections I, II, IV, V and VII as applicable, will, in each case, survive cancellation or termination of this Agreement.
    9. Headings of No Force or Effect.
      Headings in this Agreement are for reference only and have no effect on the meaning of any provision.
    10. Export Controls.
      You agree to comply fully with all relevant export laws and regulations of the United States, including but not limited to the U.S. Export Administration Regulations, administered by the Department of Commerce, Bureau of Industry and Security. You also expressly agree that you shall not export, directly or indirectly, re-export, divert, or transfer any portion of our service or any direct product to any destination, company, or person restricted or prohibited by U.S. export controls.

  10. PRIVACY
    Your use of the Service constitutes your agreement to comply with, and your acceptance of, our Privacy Policy posted at http://www.lingo.com/resources/jsp/lingo_policies.jsp#PP, as it may change from time to time.  In the event of any conflict between this Agreement and the Privacy Policy, the conflict shall be interpreted in a manner most permissive of our ability to use and disclose information to the extent permitted by law.  Please refer to our Privacy Policy for additional information, such as how we use your information and how you can opt out of receiving marketing messaging.

    1. Privacy Authorizations
      You authorize Lingo:
      1. to investigate and/or review your credit history, including requesting a consumer report, both when you sign up for our service and at any time after you sign up, for any purpose, including, but not limited to, your initial qualification for an account, your continued compliance with the terms of your account and general customer base evaluation purposes not specifically associated with your account; and
      2. to share credit information about you with credit reporting agencies. Upon your request we will inform you whether or not we have requested a consumer report, and if a report was requested, the name and address of the consumer reporting agency that furnished the report, and
      3. to use your Customer Proprietary Network Information (“CPNI”) (as defined by FCC rules, such as information about the telephone numbers with which you exchange calls, and the type and quantity of service you purchase) in accordance with FCC rules and our CPNI policy on file with the FCC, including but not limited to (a) to bill and collect for services rendered; (b) to protect the rights or property of Lingo, other users or other carriers from unlawful use; (c) to provide customer premises equipment and protocol conversion; (d) to  provide maintenance and repair services; and (e) to market services ancillary to the services to which you subscribe; and
      4. to use or disclose information as permitted by our Privacy Policy.

    2. Providing Information to Authorities and Third Parties
      If we believe that you have used our service or your Device for an unlawful purpose, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You consent to our forwarding of any such communications and information to these authorities. In addition, we may disclose your name, telephone number, credit card information, and other personal information, any communications sent or received by you, and any other information that we may have about your account, including but not limited to, types of service, length of service, MAC address(es), IP address(es), email address(es), registered 911 address, and all other account information, as follows:
      1. in response to law enforcement or other governmental agency requests
      2. as required by law, regulation, rule, subpoena, search warrant, or court order;
      3. as necessary to identify, contact, or bring legal action against someone who may be misusing the Service, the Device, or both
      4. to protect Lingo’s rights and property; or
      5. in emergency situations where disclosure of such information is necessary to protect Lingo customers or third parties from imminent harm. 

© 2013 Lingo, Inc.
Updated April 07, 2014

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